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Lord Joffe: I support the amendment of my noble friend Lady Finlay, although I believe that some of the wording might need reconsideration. I am reassured by the intention of the noble Baroness, Lady Knight, to ensure that the Bill does not prevent competent patients from refusing sustenance. If I understood her correctly, it is her intention to introduce an amendment which she feels is preferable to the amendment before us at the moment. If that is so, it removes an important concern that I had about the original Bill.

I understand the concern of the noble Baroness, Lady Knight, about depriving competent patients of sustenance without their consent. I also think that deplorable, but I question whether there is any need for specific new legislation on it. As a non-practising ex-lawyer my understanding is, bearing in mind the duty of care on doctors, that there is no basis on which they could normally refuse to give sustenance to competent patients without their consent. I may be wrong, but I think that that is the position. In that event I cannot see the purpose of further legislation when, in my view, doctors could probably be prosecuted under existing law.

Baroness Knight of Collingtree: The problem about legal action has been that it is quite impossible to get any lawyer to take a case against the NHS. It is the biggest business and, looking at it that way, probably the best-supported and funded body in the whole of Europe. Legal representatives simply will not take cases, as I have been told on the very best authority.

Most people do not have a lot of money and, if their relative has died, they are frightened of litigation because of what it may cost. Also, their nearest and dearest has gone. What will bring them back? Money will not help. The fear of legal action put forward in earlier arguments about the Bill is not well founded in fact.

Lord Joffe: Why then does the noble Baroness think that lawyers will take the cases under her legislation?

Baroness Knight of Collingtree: We know that what is going on at the moment is going on; people are being

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done to death against their will. We also know that that is against our national law, and international law. We know that the existing rules, such as they are, do not stop it happening. Some kind of law is needed to protect people in that vulnerable situation.

Lord Swinfen: If the Bill becomes law and anyone draws a suspicion to the attention of the police, it will be the duty of the police to investigate. Then it would be a matter of public prosecution.

Lord Joffe: I do not want to pursue the point further other than to say that a report could be made to the police at the moment, and the police should take action. There would be a clear breach of current law. Perhaps we should leave the debate at that at this point.

In relation to the question of incompetent patients, the existing guidelines are fair, wise and compassionate. Again, I question why we should need any further laws to deal with a situation that is well under control.

I am perplexed about what would happen under the Bill. On the Anthony Bland case, if the doctors decided to withdraw sustenance and indeed were so ordered by the courts, there was no suffering involved on his part. He could not suffer any longer. Is it the intention of the noble Baroness that future Anthony Blands would continue to survive in a state where there was no suffering but no quality of life at all, and that that would carry on indefinitely?

8.30 p.m.

Baroness Knight of Collingtree: As I understand it, the courts did not order that young Mr Bland should be done away with. They listened to the case and said that in that case it would be permissible for sustenance to be withdrawn. That is different from a court ordering a person to be killed. But it was clearly said by the noble and learned Lord, Lord Mustill, that this ruling must not become a general one and adopted throughout the country for people who were ill.

The intention of my Bill—and it is clearly set out in the amendment to be debated—is that the patient who does not wish to have a tube or PEG in his stomach can say so and he will not be forced to have one. I can do no more than tell the noble Lord, Lord Joffe, what happened in the Bland case and what was feared to be a result of it. We must now keep to our laws on protecting people's lives.

Lord Joffe: I accept the correction about what the court said, but I have a simple question to ask the noble Baroness, Lady Knight. Does she believe that the recommendation in the Bland case was incorrect? Does she believe that the permission to deprive Anthony Bland of sustenance, which was given by the court, was wrong?

Baroness Knight of Collingtree: I am happy to answer that question because there has been a great difference of opinion on it. I happen to believe that there was an acceptable reason why the Bland case

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decision was made and carried out in that way. I can speak only for myself. However, I am anxious about what was said by the noble and learned Lord, Lord Mustill. Following the Bland case, the BMA and the doctors called feeding people "giving them medical treatment". That was where the mischief all began. You can withhold medical treatment, but most people did not realise that that related to the withholding of food and they did not want that. We cannot live without food.

I hope that I have answered the noble Lord's question properly. I have certainly answered it as honestly as I can.

Baroness Masham of Ilton: I want to say a few words in congratulating the noble Baroness, Lady Knight, on all her hard work. I feel that her heart is in the right place. I also feel that it is now the responsibility of the Government to help in getting the Bill through. Many vulnerable patients feel even more vulnerable and they need protection.

We who take an interest in health services and hospices know that they are under a great deal of pressure. Bed availability and finances in hospices are under pressure. When there is a great deal of pressure, vulnerable patients need to be protected. The noble Baroness, Lady Knight, is trying so hard to get it right and I believe that everyone should help her. There are many vulnerable people whose relatives or best friends feel they need protection.

Lord Alton of Liverpool: I do not want to detain the Committee at length. My noble friend Lord Joffe raised the point about the Tony Bland case. I was perhaps the constituency MP most involved in 1993 when I was in another place. Your Lordships will recall the terrible tragedy at Hillsborough involving Liverpool Football Club. On the same day that Tony Bland went into a deep coma and became PVS—persistent vegetative state—a young constituent of mine called Andrew Divine, had exactly the same condition. His parents took an entirely different decision and food and fluids were not withdrawn in his case.

The Guardian newspaper has documented how after five years quite extraordinary progress was made in Andrew's case. At Second Reading I received permission from his mother to tell your Lordships what had happened to him and how, against the expectations of every prognosis, there were startling improvements in his condition. He was well able to eat solids, so was no longer on fluids only, and he had been in an identical position to Tony Bland.

The noble Baroness, Lady Knight, has referred to the noble and learned Lord, Lord Mustill, who said at the time:

    "It is a striking fact that in 20 of the 39 American states which have legislated in favour of 'living wills', the legislation specifically excludes termination of life by the withdrawal of nourishment and hydration".

He also said that the Tony Bland judgment left the law,

    "morally and intellectually misshapen".

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The noble and learned Lord, Lord Hoffmann, said:

    "The giving of food to a helpless person is so much the quintessential example of kindness and humanity that it is hard to imagine a case in which it would be morally right to withhold it".

I know that the noble Lord, Lord Joffe, and I have differences about a Private Member's Bill that he has introduced in your Lordships' House, but I believe that those statements that I have just read to the Committee would be deeply influential with him and that he would accept the spirit of what the noble Baroness, Lady Knight, is trying to achieve. I hope that he will find it possible to support the provisions of the Bill.

Baroness Finlay of Llandaff: I have listened carefully to what has been said and I am most grateful to all noble Lords who have commented on the wording of the amendment. I accept that there are corrections to be made to the wording, and that in particular there is a mistake: "senior senior doctor". However, there are other ways in which the wording can be improved.

I want to make a few brief comments. Consent must be informed to be valid, and it must be voluntary. If consent is given under duress, it is not valid consent. That is why I use the word "consent". Consent does not have to be written consent. In fact, written consent only records that the process of consent has occurred. Consent is a process that may be implied, such as the person who exposes his or her abdomen for it to be examined; such as the person who puts up his or her arm for blood to be taken; or the patient who opens his or her mouth when food is offered. That is implied consent. One would never consider requiring patients to sign for everything. That would be ridiculously burdensome.

If pressure has been put on the patient either way, that consent is not valid. That goes both ways. The issue of how experienced a senior doctor has to be was raised under subsection (7). A senior doctor is one who is deemed to be a specialist or one who is on the general practitioners' register with the GMC; they have completed their higher specialist training. However, I disagree with the noble Baroness, Lady Knight, about doctors working 24/7 because fortunately the European Working Time Directive has arrived and has kept people from suffering the hours that I used to have to work.

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